ROSALIE COHEN v. STATE OF NEW JERSEY

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0152-16T3

ROSALIE COHEN,

        Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

     Defendant-Respondent.
_______________________________

              Submitted January 8, 2018 – Decided January 29, 2018

              Before Judges Sabatino and Ostrer.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Docket No.
              L-0036-14.

              Rosalie Cohen, appellant pro se.

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Melissa H. Raksa,
              Assistant Attorney General, of counsel; Ashley
              L. Costello, Deputy Attorney General, on the
              brief).

PER CURIAM

        This matter returns following a remand to the trial court

we ordered in our unpublished opinion in February 2016.                 See Cohen

v. State of New Jersey, No. A-4838-13 (App. Div. Feb. 26, 2016).
In her present appeal, pro se plaintiff contests the trial court's

July 15, 2016 order dismissing her lawsuit against defendant State

of New Jersey as untimely under the applicable two-year statute

of limitations, 
N.J.S.A. 2A:14-2.           For the reasons that follow,

including the Supreme Court's recent opinion in Elazar v. Macrietta

Cleaners,    
230 N.J.   123   (2017),    we   vacate   the   trial   court's

dismissal order and remand this matter a second time, with a

direction for an evidentiary hearing to explore equitable tolling

issues.

     We incorporate by reference and do not repeat the factual

background previously described in our 2016 opinion.                   Briefly,

plaintiff and her husband are the parents of E.C., who was born

in May 1993.       The Division of Child Protection and Permanency

removed E.C. from his parents' care on April 8, 2010, based on

allegations of abuse or neglect.          At the time of his removal, E.C.

was about a month shy of his seventeenth birthday.

     Eventually the allegations of abuse or neglect by the parents

proved to be unfounded, and the Division's case against them was

closed.     In the meantime, the Division placed E.C. in a resource

home, where the form of Judaism practiced there was disapproved

by E.C.'s parents.        E.C. absconded from that initial resource

home.   He was found out of state and was returned by the Division

to a different licensed resource home, in which Judaism was not

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practiced at all.      By August 2010, E.C. ran away from that second

home, and has apparently had no contact with his parents since

that time. E.C. turned eighteen in May 2011, and thus is no longer

a minor.

     After E.C.'s parents filed the requisite tort claims notice,

plaintiff brought this civil action against the State in the Law

Division in January 2014.          In essence she contends that the

Division    acted    negligently   and     otherwise     improperly    in   its

handling of the matter respecting her son, allegedly violating

numerous federal and state statutes, regulations, and Division

policies.    In March 2014, the trial court granted the State's pre-

answer motion to dismiss the complaint under Rule 4:6-2(e), finding

that plaintiff's pro se complaint failed to state a claim upon

which relief may be granted.

     In our February 2016 unpublished opinion, we reversed the

trial court's Rule 4:6-2(e) dismissal order, concluding that the

complaint,   if     viewed   indulgently   under   the    generous    pleading

standards of Printing Mart-Morristown v. Sharp Elecs. Corp., 
116 N.J. 739, 746 (1989), sufficiently pled claims of negligence under

the Tort Claims Act and violations of alleged ministerial duties.

Cohen, slip op. at 5-6.        However, we affirmed the trial court's

dismissal of plaintiff's claims grounded upon federal civil rights

laws, 42 U.S.C. § 1983, and the New Jersey Civil Rights Act,

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3 N.J.S.A. 10:6-2.        Cohen, slip op. at 4.       We also instructed that

on remand the State could renew its motion to dismiss the complaint

as untimely under the statute of limitations, since that particular

issue had not been reached by the trial court.             Cohen, slip op.

at 6.

        On remand the State moved to dismiss the complaint as time-

barred, arguing that plaintiff's alleged causes of action had

accrued more than two years before she filed suit on January 2,

2014.    Plaintiff countered that her lawsuit was timely because her

claims did not accrue until she became aware that the Division

made contact with her son without informing the authorities of

such contact.      In particular, the parents' pre-suit tort claims

notice asserted that she and her husband did not learn until

January 2012 from a private detective that the Division                   was

allegedly aware of her son's whereabouts as of August 2010, but

failed     to   alert    law   enforcement.     She     contends   that   she

appropriately filed her complaint in the Law Division within two

years of learning this information.

        While the current appeal was pending, the New Jersey Supreme

Court issued its opinion in Elazar on July 26, 2017.                 In its

opinion,    the   Court   clarified   that    the   equitable   tolling   (or

"discovery rule") principles of Lopez v. Swyer, 
62 N.J. 267 (1973),

equally apply to claims against governmental entities such as the

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State when they have been sued under the Tort Claims Act.      Elazar,


230 N.J. at 127-28.    The Court instructively declared that "[w]hen

a plaintiff is injured by a third party and has no reason to

believe that another party, specifically a public entity, is

responsible for the injury, then the discovery rule applies to

toll   the   accrual   date   for   triggering   the   notice-of-claim

requirement."   Id. at 140.   "The discovery rule should be applied

with reasonableness as to whether a diligent plaintiff would have

or should have realized that a public entity was involved at all."

Ibid. Consequently, the Court remanded the case for an evidentiary

"Lopez hearing" to explore those fact-dependent issues regarding

the extent of the plaintiff's knowledge.     Id. at 142.

       The same procedure should be applied here, in light of

Elazar.   We recognize that the text of plaintiff's complaint does

not state when plaintiff and her husband first became aware of the

Division's alleged inattentiveness to their son's disappearance,

or mention the private detective.        However, their tort claims

notice provided some substantiation of their point of awareness

and the pertinent time line.        A Lopez hearing is necessary on

remand to explore these issues, with the expectation that the

trial court will make associated credibility findings that bear

upon the statute-of-limitations and accrual issues.        We intimate

no views about the appropriate outcome of that assessment.            We

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also need not address whether post-accrual events may be included

in plaintiff's claims under notions of a continuing wrong; that

question need not be resolved until the date of accrual itself is

ascertained on remand, and the nexus between that date and the

dates of later events is better illuminated.

       In light of our ruling, and the scant development of the

factual record thus far, we need not address whether the trial

court correctly rejected plaintiff's argument that she has implied

private rights of action under the child welfare statutes and

regulations.    Those issues of implied duties and rights are best

suited for reconsideration by the trial court on a fuller record

and after appropriate discovery, if the lawsuit is determined to

be timely.      Nor do we consider here issues of causation, and

whether, for example, plaintiff's son would have separated from

his   parents   in   any   event   even   if   the   Division   had     acted

differently.

      Vacated and remanded for an evidentiary hearing.




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